by Ashley Overbeck
Special Assignments Team
ashbeck@darkwing.uoregon.edu
Imagine being forced to wear a sandwich board that says "violent and sexual content" if you want to stand on the street and hand out a pamphlet on domestic abuse. Believe it or not, this kind of content-based labeling is what the Clinton Administration is pushing as an alternative to the Communications Decency Act, recently struck down by the U.S. Supreme Court as unconsitutional. Ironically, the new system may achieve through technology what it was unable to achieve through legal means.
Ever since the Supreme Court's June 26 decision overturning the CDA, the Clinton Administration has sought new approaches to making the Internet "family-friendly." The latest buzz around the White House and in the online industry is a "voluntary" Internet ratings system and blocking software that will screen out "inappropriate"content. This solution alleged emerged from a recent White House summit on Internet censorship.
But behind the happy-face facade of a legislation-free, kid-friendly Internet lie some little-reported details that could have implications for online liberties every bit as profound as those imposed by the CDA. The proposed ratings sytem would apply a one-standard-fits-all solution to a complex problem, and would be far from "voluntary." The filtering software is riddled with flaws, and sites that choose not to participate in the ratings scheme risk being blacklisted in the very near future by all major Web browsers and search engines, leaving them isolated in the nether regions of cyberspace. Worse yet, new legislation may soon hard-code these "voluntary" freedom-abridging schemes into law. This special report presents an in-depth analysis of post-CDA censorship plans, the flaws of the proposed system, and its possible negative impact on free speech online.
Next
: The Censorship Summit.
(c) 1997 ParaScope, Inc.
"The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."
--Justice John Paul Stevens, writing for the majority in
ACLU v. Reno
"Children are not a universal First Amendment solvent immediately dissolving vital constitutional restraints on government interference with freedom of expression."
--Arizona State University law professor Laurence Winer, in
Rationales & Revelations: Regulating the Electronic Media
President Clinton and Vice President Gore hosted a White House summit on Internet censorship in July, billed as an opportunity for officials, online industry representatives, educators, children's advocacy groups, consumers and law enforcement organizations to discuss non-legislative strategies for Internet content regulation in the wake of the Communications Decency Act fiasco. The buzzword of the summit was "voluntary" ratings for Internet sites -- part of a so-called "virtual toolbox" that promised to "empower" parents and make the Internet a more "family-friendly" environment.
The proposed system would require web page publishers to rate their own sites based on common criteria. Parents could then use a variety of commercially-available software to filter out "objectionable" material based on the ratings. Unrated sites -- sites that do not comply with the ratings system -- risk being screened out altogether.
Although the American Civil Liberties Union and other free speech advocates initially were snubbed by the White House, harsh criticism prompted a last minute invitation for the ACLU. The ACLU was one of the groups who filed suit against the Clinton-supported CDA, which the Supreme Court ruled was unconstitutionally restrictive in
a unanimous June decision
.
After the summit ACLU legislative counsel David Haines said he was "wary" of schemes to implement a universal "voluntary" ratings system on the Internet. "By seeking to coerce high-tech self-regulation from industry groups, the White House is putting free speech at risk all over again," he said. "Although President Clinton is to be commended for not seeking new legislation, we're fearful that the Administration seems to be trying to achieve through technology what it could not achieve through the Courts."
The summit, however, took place
after
a smaller group of industry representatives and certain parents groups (including representatives from Microsoft, SurfWatch, AT&T, the World Wide Web Consortium, the Center for Democracy and Technology, Media Access Project, the American Library Association, and People for the American Way) met privately with Clinton and Gore earlier in the day.
"The pre-meeting resulted in predetermined conclusions being presented to those who were invited to participate," Haines said. "Unfortunately, the ACLU and others who attended in a spirit of cooperation and with the hopes of making contributions were largely relegated to the role of spectator."
President Clinton announced that Netscape, Microsoft and other industry players plan to embed a ratings software code in their World Wide Web browsers. The code, known as the Platform for Internet Content Selection (PICS) would work with a parents' chosen ratings software program to screen out Web sites. Netscape announced that it will include PICS in version 5.0 of its browser. Microsoft's Internet Explorer 3.0 already includes the technology.
"For these controls to work to their full potential, we also need to encourage every Internet site, whether or not it has material harmful for young people, to label its own content," Clinton urged during the meeting. "To help to speed the labeling process along, several Internet search engines -- the Yellow Pages of cyberspace, if you will -- will begin to ask that all Web sites label content when applying for a spot in their directories." Yahoo, Excite, Infoseek, and Lycos announced at the summit that they would work together to find ways to make sites they list in their directories easy to rate.
The ACLU has cautioned industry groups not to rush toward a universal ratings system based on individual self-labeling, and urged support for a third-party filtering system that would allow diverse groups to create their own filtering schemes. "In moving away from supporting third-party filtering systems, the government is once again heading down the wrong road," Haines said. "Rather than empowering parents, a universal rating system will in effect restrict the choices that parents can make."
"Imagine being forced to wear a sandwich board that says 'violent and sexual content' if you want to stand on the street and hand out a pamphlet on domestic abuse," Haines said. "This kind of content- based self-labeling is exactly what the Supreme Court opposed in its recent decision striking down censorship provisions of the CDA."
Not all online free speech groups opposed the plan. The Center for Democracy and Technology has worked closely with the White House in support of the rating and filtering alternative. "Working to make the Internet family-friendly through blocking and filtering tools is the only effective solution, and the only method consistent with the broad First Amendment protection afforded the Internet in the recent Supreme Court ruling," Jerry Berman, the CDT's executive director said after the summit.
Carole Shields, president of People For the American Way, agreed with this assessment and stressed the need for government involvement. "Parents need to know the difference between good software and not-so-good software," she said. "Government's role in this debate is to provide parents with the tools they need to make wise decisions, not to introduce ineffective and meddlesome regulations. We need education. We do not need a son of CDA."
The Electronic Privacy Information Center, on the other hand, opposes what it regards as "censorware" for the Internet. "While such an approach might seem preferable to CDA-type legislation at first glance, imagine an Internet where only 'PG' rated content could be found through the search engines we've come to depend on," a statement from the group cautioned. EPIC's Dave Sobel, who attended the White House summit, further warned that the programs could give parents a false sense of security. "I don't think you can ever really rely on a piece of software to do what you as a parent should be doing," he said.
Mainstream press coverage of the summit and the issue of Internet ratings and filtering technology has presented a picture of nearly universal solidarity between government, industry, parents' and educators' organizations and privacy groups. However, many groups share EPIC's concerns. Several online news services have presented critical accounts of the post-CDA censorship plans, a recent
Scientific American
article pointed out some major shortcomings in the technology, and groups ranging from the Electronic Frontier Foundation to members of the legal community have spoken out against the new strategy.
A Computer Professionals for Social Responsibility press release predicted that the voluntary ratings plan may end up being as restrictive as the CDA. "Now that the Communications Decency Act has been overturned, Internet ratings systems could use technical means to accomplish what the CDA could not accomplish legally," said CPSR president Aki Namioka. "Parents should be able to determine what their children see on the Internet. Unfortunately, the ratings proposals would place onerous self-labeling requirements on information providers, and may effectively fragment the Internet."
The American Library Association, which took part in the summit and was included in the private pre-summit meeting with President Clinton, was presented in several press accounts as cautiously supportive of Internet ratings. ALA president Barbara Ford was quoted at the summit as saying, "we can build great tools, but they can never take the place of effective adult supervision." What was missing in many stories was the fact that an ALA has officially issued
a resolution against filtering software
. "The use in libraries of software filters which block Constitutionally protected speech is inconsistent with the United States Constitution and federal law and may lead to legal exposure for the library and its governing authorities," an ALA statement on the issue asserts. "The American Library Association affirms that the use of filtering software abridges the Library Bill of Rights."
Beyond the new software "solution," Clinton announced plans for more strict enforcement of anti-stalking, child pornography and obscenity laws in cyberspace. "In the past three months alone, the FBI has expanded by 50 percent the staff committed to investigating computer-related exploitation of minors, and established a task force to target computer child pornography and solicitation," Clinton told reporters at the summit. "In the past six months, the Department of Justice has increased the number of lawyers working in its Child Exploitation and Obscenity Section by 50 percent." The President also stressed the need for increased parental involvement in children's online activities.
America Online's Steve Case also announced that in October industry leaders, consumer and parent groups, and law enforcement will hold their own "Internet Summit" to develop more concrete policies on how to implement censorware to keep kids out of the seedier corners of the Net.
Next
: A closer look at currently-available censorware and the implications of "voluntary ratings."
Although it has only recently gotten major media attention, the Platform for Internet Content Selection (PICS) has been in development for several years, and the code is currently used by Microsoft's Internet Explorer Web browser, many major Internet service providers, and commercially-available blocking software packages. PICS is not itself a ratings system -- it is simply a string of code written into a web page's header that allows the page's publisher to tell filtering software whether or not it should block access for minors. Under Clinton's post-CDA plan,
all
Web publishers would be asked to "voluntarily" add the PICS code and a rating or risk having their pages automatically filtered out as "unrated" -- hence, by default, inappropriate.
So why is this a problem? "The currently available PICS systems -- RSACi, SafeSurf, and NetShepherd -- do not provide information providers with a truly meaningful choice," Computer Professionals for Social Responsibility board member Harry Hochheiser said in a press release. "The ratings categories and descriptions in these ratings systems may be too narrow for some sites. Confusion and mis-rating are almost inevitable."
The CPSR's criticism has been echoed in many corners of cyberspace. And a close look at some of the rating and filtering software packages that are currently available paints an ominous picture of what is to come.
Cyber Patrol rates sites along fifteen dimensions, from "violence/profanity" to "alcohol and tobacco," but assigns only two values within each of those categories: CyberNOT and CyberYES. Specs for Kids rates documents along eleven dimensions, including "advertising," "alternative lifestyles," "politics" and "religion," and assigns up to five values (including "no rating") in each of those categories. CyberSitter, by contrast, maintains a single list of objectionable sites with no option for blocking only portions of the list.
Horror stories and anecdotes about the new rating systems abound, ranging from ridiculous mix-ups to politically-charged censorship. SurfWatch, for example, reportedly blocked a page on the White House server because its URL --
http://www.whitehouse.gov/WH/kids/html/couples.html
-- contained the forbidden word "couples." And on family-friendly America Online, ever on the prowl for naughty bits, the system refused to let users from the British town of Scunthorpe register their member profiles because of the dirty word embedded between the "s" and "h" in the name of their home town.
Technical glitches and shortcomings run the gamut from maddening to downright illogical. Some packages block access to entire domains, like HotWired, if even one page is deemed unacceptable. Net Nanny inexplicably blocks all mailing lists from computer scientists at cs.colorado.edu, where "racy" topics include the parallel-compilers, systems+software, and computer-architecture listservs. Other packages don't store the complete URL for blocking -- Cyber Patrol, for instance, abbreviates the last three characters of the Web address. So when it blocks the"CyberOS" gay video site by banning http://www.webcom.com/~cyb, Cyber Patrol also filters out "Cyber High School" at~cyberhi, along with 16 other accounts that start with "cyb." Or when it denies access to an occult resources page at http://loiosh.andrew.cmu.edu/~sha, the program cuts off 23 "sha" accounts at Carnegie Mellon University, including Derrick "Shadow" Brashear's web page on Pittsburgh radio stations.
Other blocking decisions are more disturbing than amusing. Cyber Patrol, which blocks "gross depictions," prevents access to animal-rights web pages because images of animal abuse, including syphillis-infected monkeys and greyhounds,
are categorized as "CyberNOTs."
Envirolink, the Pittsburgh-based company that sponsors one of the offending pages, has threatened to sue in retaliation. "Pending whether [our attorney] thinks we have a case or not, we will actually pursue legal action against Cyber Patrol," Envirolink managing director Christina Springer told the CyberWire Dispatch last year. "Animal rights is usually the first step that children take in being involved in the environment. Ignoring companies like Mary Kay that do these things to animals and allowing them to promote themselves like good corporate citizens is a 'gross depiction.'"
Homosexuality is a taboo topic for most Net filters, regardless of how it is presented for discussion -- gay porn and AIDS resources are equally as "offensive" in the eyes of the raters. As a CyberSitter source told CyberWire Dispatch: "I wouldn't even care to debate the issues if gay and lesbian issues are suitable for teenagers... We filter anything that has to do with sex. Sexual orientation [is about sex] by virtue of the fact that it has sex in the name."
So, Cyber Patrol blocks access to the Queer Resources Directory, along with Usenet newsgroups clari.news.gays (home to AP and Reuters articles), alt.journalism.gay-press, and soc.support.youth.gay-lesbian-bi. CyberSitter filters out any material with lesbian or bisexual themes -- and by extension therefore blocks access to the National Organization of Women's homepage. Net Nanny blocks feminist newsgroups, a policy taken to an extreme by Cyber Patrol, who reportedly blocks newsgroups alt.feminism, alt.feminism.individualism, soc.feminism, clari.news.women, soc.support.pregnancy.loss, alt.homosexual.lesbian, and soc.support.fat-acceptance.
Feminists, animal rights supporters and homosexuals aren't the only "pariah" groups; gun rights advocates are also rendered as persona non grata in the family-friendly paradigm of censorware. Cyber Patrol in particular has been shown to block Second Amendment and gun rights advocacy pages.
Other seemingly political blocking strategies raise serious questions about the manufacturer's motives. CyberSitter blocks the Web site of Peacefire, a teen-run cyber-rights group, although the site contains no questionable material -- other than criticism of CyberSitter. Cyber Patrol blocks access to (among others) the Electronic Frontier Foundation's censorship archive and the League for Programming Freedom at MIT, a group that opposes software patents.
The situation is made all the more vexing because the ratings of most third-party labeling services are considered trade secrets. No service takes steps to inform content providers of the ratings it assigns to their pages. Content providers can discover their ratings only by buying the various blocking programs and periodically searching for their own sites.
Trouble also looms on the horizon for web-based news sites, whose content is sure to run afoul of the censorware filters on a daily basis. But one proposed work-around to this dilemma could be equally as problematic.
The ad hoc Internet Content Coalition supports the idea of a "news" rating that would allow journalistic sites to automatically bypass the filters unless it was manually blocked by a user. But who would decide which sites qualify as news? The ICC (organized by MIT and the WELL, and joined by Playboy Enterprises, NBC, the
New York Times
,
Wall Street Journal
, and CNET) would be ultimately responsible for granting -- and challenging or revoking -- the online news rating. As news.com writer Courtney Macavinta pointed out in a recent column, "Without a 'seal of approval,' sites could be exiled back to the one-to-ten ratings aimed at filtering the Net's 'most unwanted' pornographers." Critics see the proposal as suffering from elitism and bordering on a system of journalistic licensing. Others fear that the ICC will mirror flaws of other peer-review groups charged with granting press credentials that have excluded reporters and publications based on alleged personal conflicts.
Despite the glaring problems
with currently-available rate-and-block censorware, the White House and online industry seem hell-bent on forcing their "solution" on the Internet community. While few would argue against parental authority in determining which content they deem appropriate for their children, the one-size-fits-all approach is misguided and potentially dangerous. "The big problem with third-party services is they've got the whole thing backward. Instead of giving parents control, they're taking it away," the CPSR's Hochheiser has noted. "CPSR would like to see tools developed that rely upon parental diligence and attention, rather than potentially coercive ratings systems."
Coercive is in fact the key word here: Fears of kiddie-porn and visions of a "family-friendly" Internet are the carrot leading many to embrace (or at least pledge to comply with) the post-CDA censorship -- but the proverbial stick is not far behind. Netscape's recent pledge to incorporate PICS into its next browser release will mean that 90% of all Web navigation software will have the "family-friendly" controls built in. All major ISP's already provide subscribers with some form of custom or commercial blocking system, and the busiest Internet search engines have pledged their cooperation to the ratings scheme by blocking pages that refuse to rate themselves.
Having your site mis-rated is one cost of "voluntary" ratings; being blocked altogether by refusing to rate is another. Eventually, there could be an actual monetary cost involved as well: the Recreational Software Advisory Council's business plan contemplates charging for its PICS-compatible RSACi rating system, just as it charges a fee to video-game manufacturers who participate in its video-game self-rating system.
Despite this, many in the online community who opposed the CDA are jumping on the "let's regulate ourselves before the government does it for us" bandwagon. A February
PC Week
column expressed views typical of the voluntary-means-mandatory attitude: "Some might argue that their sites contain no objectionable content and thus don't need ratings," the editors wrote. "That argument doesn't wash, however, because to be safe those wishing to limit access to potentially unsuitable pages will choose the option of having the browser block unrated pages. For even the best-behaved page to be available to such folks, it needs a rating."
Is this truly voluntary? Free speech and privacy groups such as EPIC are warning the Internet community that "it's time for Net users to educate themselves on the issue and express their views on the 'voluntary' decisions that could drastically alter the medium."
A quick glance at the broadcast industry illustrates how voluntary content ratings are a slippery slope: As
Washington Post
columnist Nat Hentoff has noted, after failing to please with their initial TV ratings scheme, "the television industry -- except for NBC -- has allowed itself to be coerced into a new 'voluntary' rating system for its programs." And if some members of Congress have their way, "voluntary" compliance will take on a completely new face. Hentoff notes, "Several members have introduced bills that would all but force compliance with a rating system that is supposed to be voluntary." Such bills included "denying non-complying TV stations renewal of their broadcast licenses."
Is this where Internet regulation is headed as well?
Next
: Some possible future scenarios.
So where is the universal and not-so-voluntary new path to a "family-friendly" Internet leading us? According to the Clinton administration, the comparison with the broadcast industry may not be too far off the mark.
White House spokesman Mike McCurry said at the Internet censorship summit briefing that Clinton's "preference at this point is to use the energy and enthusiasm of the industry to develop these voluntary approaches that might accomplish our purposes." But McCurry went on to say the White House wants something "as powerful for the computer as the v-chip will be for the television that protects children in ways that are consistent with America's free-speech values." Asked about the possibility of more legislative attempts to control the Internet, McCurry said "we'll look at the prospects for legislation after we see how this voluntary effort goes."
Even censorware enthusiasts at the Center for Democracy and Technology bristled at the suggestion of an "e-chip": "We don't need to reinvent the wheel here and we don't need a v-chip for the Internet," the CDT's Jerry Berman said in response. "We have tools out there which are 100 percent available. They just need to be more widely used and understood."
Unfortunately, the CDT's faith in the administration's post-CDA plan may prove to be naive. As Federal Trade commissioner Christine Varney told
Wired
News at the summit, "If someone self-rates their Web site inaccurately, we already have the ability to prosecute them through unfair practice rules -- the legal authority already exists. "Everyone understands that we might need legislation, but we have to give this a chance first."
Several bills pending in both the House and Senate already are seeking to codify into law agreements that are now understood to be voluntary and informal, including the "Family-Friendly Internet Access Act of 1997," which would require all ISP's to provide screening software for their clients.
Other proposals are in the works outside the Beltway. SafeSurf has drafted an "
Online Cooperative Publishing Act
" that would give the rating system teeth -- and bolster their bottom line. Under SafeSurf's proposal, the ability to identify the adult rating of online content before it enters one's home would be considered a "civil right" which, if violated, could precipitate a lawsuit against "negligent" publishers. The Act defines negligence as "placing adult oriented material on the Internet in such a way or in such a location that it prevents its rating from being known" and ratings as being strictly PICS-compatible.
Violators could be criminally prosecuted for "subverting a rating system to entice children to harmful material," and data posted in a newsgroup or any joint/common directory labeled as "free from material harmful to minors" would be considered a "criminal assault on the rights of the receiver." Failure to label would not be a crime per se, although if the unlabeled data were deemed to be harmful to minors the publisher could be sued for negligence -- and in filing suit parents would not have to prove that the content actually produced harm to their child, only that the material was severe enough to reasonably be considered to have needed a rating label to protect children. ISP's would not be held responsible for content on their services, but Web designers could be held liable for failing to attach ratings to Web sites they produced that contain "harmful" material.
This may be good business for SafeSurf and other censorware manufacturers, but is such a scenario really in the best interests of the Internet community?
As it happens, making the Internet "good for business" may be closely linked to the Clinton administration's new commitment to extra-legislative approaches to making the Net "safe for kids." Parts of Clinton and Gore's business-friendly Internet, as outlined in their "
Framework For Global Electronic Commerce
" released in early July, contain sections on control of content that dovetail nicely with the "solutions" agreed upon at the censorship summit.
In what seems to be a stunning reversal of the policy Clinton signed into law with the CDA, the global commerce report states:
"The U.S. government supports the broadest possible free flow of information across international borders. This includes most informational material now accessible and transmitted through the Internet, including through World Wide Web pages, news and other information services, virtual shopping malls, and entertainment features, such as audio and video products, and the arts. This principle extends to information created by commercial enterprises as well as by schools, libraries, governments and other nonprofit entities."
The report goes on to state that "in contrast to traditional broadcast media," the Internet has the capacity to regulate itself through technologies that empower parents to block access to sites they deem offensive. Clinton and Gore conclude: "To the extent, then, that effective filtering technology becomes available, content regulations traditionally imposed on radio and television would not need to be applied to the Internet. In fact, unnecessary regulation could cripple the growth and diversity of the Internet."
It is important to note that in the Framework For Global Electronic Commerce, passages addressing Internet content are categorized as "market access issues." The White House may be concerned with the "free flow of information across international borders," but the strong implication here is that this concern is primarily rooted in a desire to make the Internet safe for business rather than a commitment to protect the First Amendment in cyberspace.
The good news for the future
is that legal scholars are predicting a mandatory self-rating requirement would likely be held unconstitutional. Legal precedent may well be on the side of those who reject mandatory site labeling: In
Riley v. National Federation of the Blind,
the Supreme Court ruled that a requirement that professional fundraisers disclose the percentage of their contributions that actually went to the charity amounted to an unconstitutional content-based regulation. As law professor Jonathan Weinberg explains, the Court said "mandating speech that a speaker would not otherwise make" necessarily alters the content of the speech, and thus amounts to content-based regulation." So even when the required information is purely factual, the compulsion places a burden on free speech and is subject to strict scrutiny.
Similarly, in
McIntyre v. Ohio Elections Commission
Justices disallowed a requirement that groups distributing election materials such as petitions or mailings state their names and addresses on those materials. The Court explained that the requirement was a "direct regulation of the content of speech," even though the disclosure was "useful to voters and uncontroversially factual." Since the state was requiring "that a writer make statements or disclosures she would otherwise omit" the restriction was ruled unconstitutionally restrictive.
But before we contemplate possible future Court-based remedies, it is crucial that the online community act now to inform themselves about plans for censorship in the post-CDA era. While few of us would find fault with the desire to have discretion over the content that comes into our homes via the Internet, it is important to consider who has the authority to make those decisions for us. Unless we want online corporations to implement through technology what the government could not achieve legally through the CDA, we need to be actively involved in the the quest for true self-regulation.
Take Action!
Be sure to check out
EPIC's censorware page
and tell the search engines what you think about mandatory ratings!
Sources:
Hentoff. Nat "NBC's Lonely Defense of the First Amendment
The Washington Post
July 26, 1997
Macavinta, Courtney "News sites worry about filtering" news.com July 24, 1997
"Computer Professionals Question Internet Filtering Agreement" Computer Professionals for Social Responsibility Press Release July 18, 1997
Pietrucha, Bill, "ACLU Wary Of White House Censorship Goals"
Newsbytes
July 17, 1997
Enda, Jodi and Matt Mossman "Parents to get ammo to fight Internet smut"
The Des Moines Register
July 17, 1997
Pietrucha, Bill, "Clinton Urges Voluntary Internet Safeguards For Children"
Newsbytes
July 16, 1997
Vesley, Rebecca "The Clinton-Gore Porn-Filtering 'Toolbox'"
Wired
News July 16, 1997
Vesley, Rebecca "Clinton, Gore Want to 'Empower' Parents"
Wired
News July 15, 1997
Shogren, Elizabeth "White House Seeks Internet Ratings; Technology: Officials Team with High-Tech Ccomapnies in Attempt to Allow Screening of Objectionable Material"
Los Angeles Times
July 3, 1997
"Web Site Ratings--Shame on Most of Us"
PC Week
February 3, 1997
Weinberg, Jonathan "Rating the Net" (1997)
Hastings Communication and Entertainment Law Journal
19: 453
Meeks, Brock N and Declan B. McCullagh, "Jacking In from the 'Keys to the Kingdom' Port," CyberWire Dispatch, July 3, 1996
"The Online Cooperative Publishing Act, SafeSurf's Proposal for a Safe Internet Without Censorship" accessed at
http://www.safesurf.com/online.htm
.